West River Bridge Company Vs. Dix - Court Judgment

LegalCrystal Citation

legalcrystal.com/80042

Court

US Supreme Court

Decided On

1848

Case Number

47 U.S. 507

Appellant

West River Bridge Company

Respondent

Dix

Excerpt:
west river bridge company v. dix - 47 u.s. 507 (1848)
u.s. supreme court
west river bridge company v. dix, 47 u.s. 6 how. 507 507 (1848)
west river bridge company v. dix
47 u.s. (6 how.) 507
error to the supreme court of
judicature of the state of vermont
syllabus
a bridge, held by an incorporated company, under a charter from a state, may be condemned and taken as part of a public road under the laws of that state.
this charter was a contract between the state and the company, but, like all private rights, it is subject to the right of eminent domain in the state.
the constitution of the united states cannot be so construed as to take away this right from the states.
nor does the exercise of the right of eminent domain.....

Judgment:

West River Bridge Company v. Dix - 47 U.S. 507 (1848)
U.S. Supreme Court
West River Bridge Company v. Dix, 47 U.S. 6 How. 507 507 (1848)

West River Bridge Company v. Dix

47 U.S. (6 How.) 507

ERROR TO THE SUPREME COURT OF

JUDICATURE OF THE STATE OF VERMONT

Syllabus

A bridge, held by an incorporated company, under a charter from a state, may be condemned and taken as part of a public road under the laws of that state.

This charter was a contract between the state and the company, but, like all private rights, it is subject to the right of eminent domain in the state.

The Constitution of the United States cannot be so construed as to take away this right from the states.

Nor does the exercise of the right of eminent domain interfere with the inviolability of contracts. All property is held by tenure from the state, and all contracts are made subject to the right of eminent domain. The contract is, therefore, not violated by the exercise of the right.

The Constitution of the United States intended to prohibit all such laws impairing the obligation of contracts as interpolate some new term or condition, foreign to the original agreement.

Property held by an incorporated company stands upon the same footing with that held by an individual, and a franchise cannot be distinguished from other property.

In 1795, the Legislature of Vermont passed on act entitled, "An act granting to John W. Blake, Calvin Knowlton, and their associates, the privilege of building a toll bridge over West River in Brattleboro."

The first section enacted that Blake, Knowlton, and their associates should be and continue a body politic and corporate by the name of the West River Bridge Company for one hundred years, and that they should have the exclusive privilege of erecting and continuing a bridge over West River within four miles from the place where said stream united with Connecticut River.

The third section enacted that at the expiration of forty years from 1 December, 1796, the judges of the supreme court should appoint commissioners to examine the books and accounts of the company, and if it should appear that the net proceeds should have averaged a larger sum than twelve percent per annum, the judges should lessen the tolls, provided they did not reduce them so low as to prevent the proprietors from receiving twelve percent

The remaining sections provided for the government of the company, for their keeping the bridge in good repair &c.;

During the years 1795, 1796, and 1797, the company built the bridge.

In 1799, Josiah Arms conveyed to the company a small piece of land, about two acres, lying on the south bank of West River.

In 1803, the legislature passed a supplement to the charter, which altered the rate of tolls, but left the remaining parts of it unaltered.

In November, 1839, the legislature passed an act entitled, "An act relating to highways," in and whereby it was enacted and provided, that

"whenever there shall be occasion for any new highway in any town or towns in this state, the supreme and county courts shall have the same power to take any real estate, easement, or franchise of any turnpike, or other corporation, when, in their judgment, the public good requires a public highway, which such courts now have, by the laws of this state, to lay out highways over individual or private property; and the same power is granted, and the same rules shall be observed, in making compensation to all such corporations and persons, whose estate, easement, franchise, or rights shall be taken, as are now granted and provided in other cases, provided that no such real estate, easement, or franchise shall be taken in the manner and for the purposes aforesaid, unless the whole of such real estate, easement, or franchise belonging to said corporation shall be taken, and compensation made therefor."

On 25 August, 1842, Joseph Dix and fifty-four other persons presented the following petition to the County Court for the County of Windham:

"That the public highway or stage road, leading from the stage house of Henry Smith, in Brattleboro, through the northerly part of said town, and through the Town of Dummerston, to the south line of Putney, in said county, has for a long time been a subject of great complaint, both on account of the steep and dangerous hills and the great difficulty of keeping the same in repair, as now traveled. That various and repeated

attempts have been made to improve the same, with little success. Your petitioners further represent that, from actual survey and admeasurement, they are confident a highway may be laid between said termini and made at a moderate expense which will avoid most of the hills and be perfectly satisfactory to the public. Your petitioners are aware that some alterations have recently been made on said route by a committee of this court, upon the petition of Paul Chase and others, and that indictments are now pending against said towns for not making the same, but your petitioners believe that said committee, in ordering said alterations, are influenced by the solicitations of interested individuals, rather than the public good, and that if said alterations are worked, they would form but little improvements, and that the public will never be satisfied until said highway is laid on the best possible route, and further that it will cost as much to make said alterations (which we consider to be useless), as it will to make a good traveling road on the route contemplated by the petition."

"And your petitioners further represent that the toll bridge across West River, on said route in Brattleboro', owned by the West River Bridge Corporation is, and for a long time has been, a sore grievance, both to the traveler and the inhabitants of the towns in the vicinity who have occasion to pass and repass, travel and labor, on said highway, and however the legislature in the infancy of the state may have exercised a sound discretion in granting said toll bridge, yet, in the present improved and thriving condition of the inhabitants, your petitioners are unable to discover any good reason why said grievance should longer be endured or why the wealthy Town of Brattleboro' should not, as well as other towns much less able, sustain a free bridge across West River. Your petitioners therefore pray the court, by an able, judicious, and disinterested committee, to cause said route to be surveyed and such alterations and improvements to be made in the old road, or a new one to be laid, as the public good may require, and also to take the real estate, easement, or franchise of the 'West River Bridge Company,' a corporation owning the aforesaid toll bridge, for the purpose of making a free road and bridge across said river agreeable to the statute in such case made and provided, and as in duty bound will ever pray."

In conformity with the above prayer, the court appointed three persons to examine the premises and make report.

In May, 1843, the commissioners reported that they had examined the premises and were unanimously of opinion that a new road ought to be laid out over a considerable portion of the distance between the termini mentioned in the petition,

which road, they said, they had caused to be surveyed and laid out. The report then proceeded as follows:

"The said commissioners also examined the toll bridge across West River in Brattleboro', and have taken into consideration the propriety of laying a free road across said bridge, at the expense of said Town of Brattleboro', as contemplated by said petition, and in this the said commissioners were unanimously of the opinion that public good required that the real estate, easement, or franchise of the West River Bridge Corporation should be taken and compensation made therefor, that said toll bridge might thereafter become a free bridge. The said commissioners have therefore assessed to the said West River Bridge Corporation the sum of four thousand dollars, to be paid to the said West River Bridge Corporation out of the treasury of said Town of Brattleboro', in full compensation for all real estate, easement, or franchise belonging to said corporation, which real estate, easement, or franchise is situate in said Town of Brattleboro', near the mouth of West River, and is supposed to be more particularly described in a deed from Josiah Ames to the West River Bridge Company dated on 1 April in the year seventeen hundred and ninety-nine, and recorded in Brattleboro' records of deeds, liber D, page 203, containing two acres of land, be the same more or less, with a covered bridge, gate, toll house, barn, and other buildings thereon."

"THOMAS F. HAMMOND"

"JULIUS CONVERSE"

"ISAAC N. CUSHMAN"

"
Commissioners
"

To this report the West River Bridge Company, the Town of Brattleboro', of Dummerston, and the persons who were entitled to damages for the loss of land &c.;, all filed objections.

The Town of Brattleboro' filed five objections, the last of which was as follows:

"5. Because it does not appear from said report, and is not true in fact, that there was or that said commissioners considered that there was any occasion for any new highway on said route within a great distance -- to-wit, within two miles of said bridge."

The Town of Dummerston filed ten objections, the first four of which are as follows:

"1. Because said commissioners proceeded in said report to discontinue the Indited Road, so called, a road of which the petition of Joseph Dix and others did not ask the discontinuance,

a road which said town was then liable to make and has since raised money to make."

"2. Because the acceptance of said report would render the maintenance of two roads necessary through a large part of the town, while the natural difficulties are so great, that, with only one, the burdens of said town, when compared with its means, are unusually onerous."

"3. That said surveyed route, or Nurse Swamp route, so-called, is a longer, more wet, and more expensive route between the termini in question."

"4. That said commissioners were partial, prejudiced, and mistaken, and acted under the influence of misrepresentations made by interested persons."

The persons to whom damages were awarded by the report were fifteen in number. Eleven of these filed six objections, the first of which was as follows:

"1. Because the said commissioners were partial, prejudiced, and mistaken, and acted under the misrepresentations made by interested persons."

The West River Bridge Company filed seven objections, the sixth of which stated the charter, their observance of it, and their desire for its continuance.

In November, 1843, the case was tried, and the report of the commissioners was accepted. The two towns were ordered to pay the damages awarded to the persons through whose lands the road was laid out, and

"the Town of Brattleboro' to pay to the West River Bridge Company the sum of damages, as assessed by said commissioners, by 31 May, 1844, and that said bridge be opened for the free public travel by 1 June, 1844."

In February, 1844, a writ of certiorari was sued out from the supreme court whereby the whole proceedings of the county court were brought up for review. Upon the argument, the West River Bridge Company, in addition to the exceptions which they had presented to the court below, filed the two following:

"First. That the said statute of this state, having been enacted long after the said grant by the same state of the said franchise of toll to the said West River Bridge Corporation and long after the said grant was accepted and acted on by the said corporation, is of no validity for the purpose of authorizing the taking of the said franchise against the consent of said corporation or the laying out of a free public highway over and upon the said bridge, on the ground that the said statute, if it purports to authorize the proceedings aforesaid, is a violation of the contract of this state with the said corporation and is

therein repugnant to that clause of the Constitution of the United States which provides that no state shall pass any law impairing the obligation of contract."

"Secondly. That inasmuch as it is apparent upon the said record, and proofs filed in said cause, copies of which are hereunto annexed, that there is no occasion for any new highway within the said Town of Brattleboro' near said bridge, and that no new highway is in fact laid out or adjudged to be laid out within the distance of two miles from either terminus of said bridge, and that the damages awarded to the said West River Bridge Company are grossly inadequate as a compensation for the value of the corporate franchise, and other property adjudged to be taken, the taking of the said franchise and laying out of the said free public highway over and upon the said bridge by the judgment of the said county court under such circumstances a mere evasion under color of law of the said provision of the Constitution of the United States and an exercise of authority under this state which is wholly invalid as against the said West River Bridge Company, on the ground of its being repugnant to the constitutional provisions aforesaid."

The supreme court passed the following judgment:

"And thereupon, after hearing the respective parties by their counsel upon their respective allegations and the said exceptions in said record contained, it is considered, ordered, and adjudged by the Court here that the statute aforesaid was and is valid for the purpose of taking the said franchise and laying out the said free public highway over and upon the said bridge, and that the same was and is in no wise repugnant to the Constitution of the United States, and that the said proceedings of the said county court were a lawful exercise of the authority of the state under the said statute and neither repugnant to nor an evasion of the provisions of the said Constitution, and that there is no error in the record and proceedings aforesaid, and that the said defendant parties recover their costs."

To review this judgment, a writ of error brought the case up to this Court.

and such they essentially are. Though prosecuted in different forms and in different forums below, they are merely various modes of endeavoring to attain the same end, and a decision in either of the only question they raise for the cognizance of this Court disposes equally of that question in the other.

They are brought before us under the twenty-fifth section of the Judiciary Act in order to test the conformity with the Constitution of the United States of certain statutes of Vermont, laws that have been sustained by the Supreme Court of Vermont but which it is alleged are repugnant to the tenth section of the first article of the Constitution, prohibiting the passage of state laws impairing the obligation of contracts.

It appears from the records of these causes that in the year 1795, the plaintiffs in error were, by act of the Legislature of Vermont, created a corporation and invested with the exclusive privilege of erecting a bridge over West River within four miles of its month, and with the right of taking tolls for passing the same. The franchise granted this corporation was to continue for one hundred years, and the period originally prescribed for its duration has not yet expired. The corporation erected their bridge, has maintained and used it, and enjoyed the franchise granted to them by law, until the institution of the proceeding now under review.

By the general law of Vermont relating to roads, passed 19 November, 1839, (
vide
Revised Laws of Vermont 553), the county courts are authorized upon petition to appoint commissioners to lay out highways within their respective counties and to assess the damages which may accrue to landholders by the opening of roads, and these courts, upon the reports of the commissioners so appointed, are empowered to establish roads within the bounds of their local jurisdiction. A similar power is vested in the supreme court to lay out and establish highways extending through several counties.

By an Act of the Legislature of Vermont passed November 19, 1839, it is declared that

"Whenever there shall be occasion for any new highway in any town or towns of this state, the supreme and county courts shall have the same power to take any real estate, easement, or franchise of any turnpike or other corporation, when in their judgment the public good requires a public highway, which such courts now have, by the laws of the state, to lay out highways over individual or private property, and the same power is granted and the same rules shall be observed in making compensation to all such corporations and persons whose estates, easement, franchise, or rights shall be taken as are now granted and provided in other

Under the authority of these statutes and in the modes therein prescribed, a proceeding was instituted in the County Court of Windham upon the petition of Joseph Dix and others in which, by the judgment of that court, a public road was extended and established between certain termini, passing over and upon the bridge of the plaintiffs and converting it into a free public highway. By the proceedings and judgment just mentioned, compensation was assessed and awarded to the plaintiffs for this appropriation of their property and for the consequent extinguishment of their franchise. The judgment of the county court, having been carried by certiorari before the supreme court of the state, was by the latter tribunal affirmed.

Pending the proceedings at law upon the petition of Dix and others, a bill was presented by the plaintiffs in error to the Chancellor of the First Judicial Circuit of the State of Vermont praying an injunction to those proceedings so far as they related to the plaintiffs or to the real estate, easement, or franchise belonging to them. This bill, having been demurred to, was dismissed by the chancellor, whose decree was affirmed on appeal to the supreme court, and a writ of error to the last decision brings up the case on the second record.

In considering the question propounded in these causes, there can be no doubt, nor has it been doubted in argument, on either side of this controversy, that the charter of incorporation granted to the plaintiffs in 1793, with the rights and privileges it declared or implied, formed a contract between the plaintiffs and the State of Vermont which the latter, under the inhibition in the tenth section of the first article of the Constitution, could have no power to impair. Yet this proposition, though taken as a postulate on both sides, determines nothing as to the real merits of these causes. True, it furnishes a guide to our inquiries, yet leaves those inquiries still open in their widest extent as to the real position of the parties with reference to the state legislation or to the Constitution. Following the guide thus furnished us, we will proceed to ascertain that position. No state, it is declared, shall pass a law impairing the obligation of contracts; yet with this concession constantly yielded, it cannot be justly disputed, that in every political sovereign community there inheres necessarily the right and the duty of guarding its own existence and of protecting and promoting the interests and welfare of the community at large. This power and this duty are to be exerted not only in the highest acts of sovereignty and in the external relations of governments; they reach and comprehend likewise the interior polity and relations of social life, which should be regulated with

reference to the advantage of the whole society. This power, denominated the eminent domain of the state, is, as its name imports, paramount to all private rights vested under the government, and these last are by necessary implication held in subordination to this power and must yield in every instance to its proper exercise.

The Constitution of the United States, although adopted by the sovereign states of this Union, and proclaimed in its own language to be the supreme law for their government, can by no rational interpretation be brought to conflict with this attribute in the states; there is no express delegation of it by the Constitution, and it would imply an incredible fatuity in the states to ascribe to them the intention to relinquish the power of self-government and self-preservation. A correct view of this matter must demonstrate, moreover, that the right of eminent domain in government in no wise interferes with the inviolability of contracts; that the most sanctimonious regard for the one is perfectly consistent with the possession and exercise of the other.

Under every established government, the tenure of property is derived mediately or immediately from the sovereign power of the political body, organized in such mode or exerted in such way as the community or state may have thought proper to ordain. It can rest on no other foundation, can have no other guarantee. It is owing to these characteristics only, in the original nature of tenure, that appeals can be made to the laws either for the protection or assertion of the rights of property. Upon any other hypothesis, the law of property would be simply the law of force. Now it is undeniable that the investment of property in the citizen by the government, whether made for a pecuniary consideration or founded on conditions of civil or political duty, is a contract between the state, or the government acting as its agent, and the grantee, and both the parties thereto are bound in good faith to fulfill it. But into all contracts, whether made between states and individuals or between individuals only, there enter conditions which arise not out of the literal terms of the contract itself; they are superinduced by the preexisting and higher authority of the laws of nature, of nations, or of the community to which the parties belong; they are always presumed, and must be presumed, to be known and recognized by all, are binding upon all, and need never, therefore, be carried into express stipulation, for this could add nothing to their force. Every contract is made in subordination to them, and must yield to their control, as conditions inherent and paramount, wherever a necessity for their execution shall occur. Such a condition is the right of eminent

domain. This right does not operate to impair the contract effected by it, but recognizes its obligation in the fullest extent, claiming only the fulfillment of an essential and inseparable condition.

Thus, in claiming the resumption or qualification of an investiture, it insists merely on the true nature and character of the right invested. The impairing of contracts inhibited by the Constitution can scarcely, by the greatest violence of construction, be made applicable to the enforcing of the terms or necessary import of a contract; the language and meaning of the inhibition were designed to embrace proceedings attempting the interpolation of some new term of condition foreign to the original agreement, and therefore inconsistent with and violative thereof. It then being clear that the power in question not being within the purview of the restriction imposed by the tenth section of the first article of the Constitution, it remains with the states to the full extent in which it inheres in every sovereign government, to be exercised by them in that degree that shall be them be deemed commensurate with public necessity. So long as they shall steer clear of the single predicament denounced by the Constitution, shall avoid interference with the obligation of contracts, the wisdom, the modes, the policy, the hardship of any exertion of this power are subjects not within the proper cognizance of this Court. This is, in truth, purely a question of power, and conceding the power to reside in the state government, this concession would seem to close the door upon all further controversy in connection with it. The instances of the exertion of this power, in some mode or other, from the very foundation of civil government have been so numerous and familiar that it seems somewhat strange at this day to raise a doubt or question concerning it. In fact the whole policy of the country relative to roads, mills, bridges, and canals rests upon this single power, under which lands have been always condemned, and without the exertion of this power not one of the improvements just mentioned could be constructed. In our country it is believed that the power was never, or at any rate rarely, questioned, until the opinion seems to have obtained that the right of property in a chartered corporation was more sacred and intangible than the same right could possibly be in the person of the citizen -- an opinion which must be without any grounds to rest upon until it can be demonstrated either that the ideal creature is more than a person or the corporeal being is less. For as a question of the power to appropriate to public uses the property of private persons, resting upon the ordinary foundations of private right, there would seem to be room neither for doubt nor difficulty.

has been attempted in argument between the power of a government to appropriate for public uses property which is corporeal or may be said to be in being and the like power in the government to resume or extinguish a franchise. The distinction thus attempted we regard as a refinement which has no foundation in reason, and one that in truth avoids the true legal or constitutional question in these causes -- namely that of the right in private persons, in the use or enjoyment of their private property, to control and actually to prohibit the power and duty of the government to advance and protect the general good. We are aware of nothing peculiar to a franchise which can class it higher or render it more sacred than other property. A franchise is property, and nothing more; it is incorporeal property, and is so defined by Justice Blackstone when treating, in his second volume, chap. 3, page 20, of the Rights of Things. It is its character of property only which imparts to it value and alone authorizes in individuals a right of action for invasions or disturbances of its enjoyment.
Vide
Bl.Comm., Vol. III, chap. 16, 236, as to injuries to this description of private property, and the remedies given for redressing them. A franchise, therefore, to erect a bridge, to construct a road, to keep a ferry and to collect tolls upon them, granted by the authority of the state, we regard as occupying the same position, with respect to the paramount power and duty of the state to promote and protect the public good, as does the right of the citizen to the possession and enjoyment of his land under his patent or contract with the state, and it can no more interpose any obstruction in the way of their just exertion. Such exertion we hold to be not within the inhibition of the Constitution and no violation of a contract. The power of a state, in the exercise of eminent domain, to extinguish immediately a franchise it had granted appears never to have been directly brought here for adjudication, and consequently has not been heretofore formally propounded from this Court; but in England this power to the fullest extent was recognized in the case of
Governor and Company of the Cast Plate Manufacturers v. Meredith,
4 Term 794, and Lord Kenyon, especially in that case, founded solely upon this power the entire policy and authority of all the road and canal laws of the Kingdom.

The several state decisions cited in the argument, from 3 Paige's Chancery 45, from 23 Pickering 361, from 17 Conn. 454, from 8 N.H. 398, from 10 N.H. 371, and 11 N.H. 20, are accordant with the decision above mentioned, from 4 Durnford & East and entirely

One of these state decisions, namely the case of
Enfield Toll Bridge Company v. Hartford & New Haven Railroad Company,
17 Conn., places the principle asserted in an attitude so striking, as seems to render that case worthy of a separate notice. The Legislature of Connecticut, having previously incorporated the Enfield Bridge Company, inserted in a charter subsequently granted by them to the Hartford and Springfield Railroad Company a provision in these words -- "That nothing therein contained shall be construed to prejudice or impair any of the rights now vested in the Enfield Bridge Company." This provision, comprehensive as its language may seem to be, was decided by the supreme court of the state as not embracing any exemption of the bridge company from the legislative power of eminent domain with respect to its franchise, but to declare this, and this only -- that notwithstanding the privilege of constructing a railroad from Hartford to Springfield in the most direct and feasible route, granted by the latter charter, the franchise of the Enfield Bridge Company should remain as inviolate as the property of other citizens of the state. These decisions sustain clearly the following positions, comprised in this summary given by Chancellor Walworth, 3 Paige 73, where he says that

"notwithstanding the grant to individuals, the eminent domain, the highest and most exact idea of property, remains in the government or in the aggregate body of the people in their sovereign capacity, and they have a right to resume the possession of the property in the manner directed by the constitution and laws of the state whenever the public interest requires it. This right of resumption may be exercised not only where the safety, but also where the interest or even the expediency of the state is concerned."

In these positions, containing no exception with regard to property in a franchise (an exception which we should deem to be without warrant in reason), we recognize the true doctrines of the law as applicable to the cases before us. In considering the question of constitutional power -- the only question properly presented upon these records -- we institute no inquiry as to the adequacy or inadequacy of the compensation allowed to the plaintiffs in error for the extinguishment of their franchise; nor do we inquire into the conformity between the modes prescribed by the statutes of Vermont and the proceedings which actually were adopted in the execution of those statutes; these are matters regarded by this Court as peculiarly belonging to the tribunals designated by the state for the exercise of her legitimate authority, and as being without the province assigned to this Court by the Judiciary Act.

Upon the whole, we consider the authority claimed for the State of Vermont, and the exertion of that authority which has occurred under the provisions of the statutes above mentioned, by the extinguishment of the franchise previously granted the plaintiffs, as set forth upon the records before us, as presenting no instance of the impairing of a contract within the meaning of the tenth section of the first article of the Constitution, and consequently no case which is proper for the interposition of this Court. The decisions of the Supreme Court of Vermont are therefore

Affirmed.

MR. JUSTICE McLEAN.

As this is a constitutional question of considerable practical importance, I will state succinctly my general views on the subject.

The West River Bridge, under the statutes of Vermont, was appropriated to public purposes. And it is alleged that the charter under which the bridge was built and possessed by such appropriation was impaired. Our inquiry is limited to this point. For whatever injury the proceedings may have done to the interests of the corporation, unless its contract with the state was impaired, we have no jurisdiction of the case.

The power in a state to take private property for public use is undoubted. It is an incident to sovereignty, and its exercise is often essential to advance the public interests. This act is done under the regulations of the state. If those regulations have not been strictly observed, that is not a matter of inquiry for this Court. The local tribunals have the exclusive power in such cases.

This act by a state has never been held to impair the obligations of the contract by which the property appropriated was held. The power acts upon the property, and not on the contract. A state cannot annul or modify a grant of land fairly made. But it may take the land for public use. This is done by making compensation for the property taken, as provided by law. But if it be an appropriation of property to public use, it cannot be held to impair the obligations of the contract.

It is insisted that this was a pretended exercise of the power of the eminent domain with the view of destroying the force and obligation of the plaintiffs' charter.

This whole proceeding was under a standing law of the state, and it was sanctioned, on an appeal, by the supreme court of the state. A procedure thus authorized by law and sanctioned cannot be lightly regarded. It has all the solemnities of a sovereign act.

But it is said that the franchise of the plaintiff cannot be denominated property; that "it included the grant of no property real or personal; that it lay in grant, and not in livery."

If the action of the state had been upon the franchise only, this objection would be unanswerable. The state cannot modify or repeal a charter for a bridge, a turnpike road, or a bank, or any other private charter, unless the power to do so has been reserved in the original grant. But no one doubts the power of the state to take a banking house for public use, or any other real or personal property owned by the bank. In this respect a corporation holds property subject to the eminent domain the same as citizens. The great object of an act of incorporation is to enable a body of men to exercise the faculties of an individual. Peculiar privileges are sometimes vested in the body politic with the view of advancing the convenience and interests of the public.

The franchise, no more than a grant for land, can be annulled by the state. These muniments of right are alike protected. But the property held under both is held subject to a public necessity, to be determined by the state. In either case the property being taken renders valueless the evidence of right. But this does not, in the sense of the Constitution, impair the contracts. The bridge and the ground connected with it, together with the right of exacting toll, are the elements which constitute the value of the bridge. The situation and productiveness of the soil constitute the value of land. In both cases, an estimate is made of the value, under prescribed forms, and it is paid when the property is taken for public use. And in these cases, the evidences of right are incidents to the property.

No state could resume a charter, under the power of appropriation, and carry on the functions of the corporation. A bank charter could not be thus taken and the business of the bank continued for public purposes. Nor could this bridge have been taken by the state and kept up by it as a toll bridge. This could not be called an appropriation of private property to public purposes. There would be no change in the use except the application of the profits, and this would not bring the act within the power. The power must not only be exercised
bona fide
by a state, but the property, not its product, must be applied to public use.

It is argued that if the state may take this bridge, it may transfer it to other individuals under the same or a different charter. This the state cannot do. It would in effect be taking the property from A to convey it to B. The public purpose for which the power is exerted must be real, not pretended. If in the course of time the property, by a change of

circumstances, should no longer be required for public use, it may be otherwise disposed of. But this is a case not likely to occur. The legality of the act depends upon the facts and circumstances under which it was done. If the use of land taken by the public for a highway should be abandoned, it would revert to the original proprietor and owner of the fee.

It is objected that this bridge, being owned by a corporation and used by the public, does not come within the designation of private property. All property, whether owned by an individual or individuals, a corporation aggregate or sole, is within the term. In short, all property not public is private.

The use of this bridge, it is contended, is the same as before the act of appropriation. The public use the bridge now as before the act of appropriation. But it was a toll bridge, and by the act it is made free. The use, therefore, is not the same. The tax assessed on the citizens of the town, to keep up and pay for the bridge, may be impolitic or unjust, but that is not a matter for the consideration of this Court.

It is supposed, if this power is sustained by the State of Vermont, it will be in the power of a state to seize the evidences of its indebtment in the hands of its citizens, or within its jurisdiction, have their value assessed, and, by paying the amount, extinguish them. Such a case bears no analogy to the one before us. The contract only is acted upon in the case supposed. The obligation to pay the money by the state is materially impaired, which brings the case within the Constitution. But the appropriation of property affects the contract or title by which it is held only incidentally. This, it is said, is an extremely technical distinction and is not sustainable, as it enables a state to do indirectly what the Constitution prohibits.

However nice the distinction may seem to be, when examined, it will be found substantial.

The power of appropriation by a state has never been held by any judicial tribunal as impairing the obligation of a contract in the sense of the Constitution. And this power has been frequently exercised by all the states, since the adoption of the Constitution. In the fifth article of the amendments to the Constitution it is declared, "Nor shall private property be taken for public use without just compensation." This refers to the action of the federal government, but a similar provision is contained in all the state constitutions. Now the Constitution does not prohibit a state from impairing the obligation of a contract unless compensation be made, but the inhibition is absolute. So that if such an act come within the prohibition, the act is unconstitutional. But this power has been exercised by the states since the foundation of the government, and no

one has supposed that it was prohibited by that clause in the Constitution which inhibits a state "from impairing the obligations of a contract."

The only reasonable result, therefore, to which we can come is that the power in the state is an independent power, and does not come within the class of cases prohibited by the Constitution.

This view gives effect to the Constitution in imposing a salutary restraint upon legislation affecting contracts, but leaves the states free in their exercise of the eminent domain, which belongs to their sovereignties, is essential for the advancement of internal improvements, and acts only upon property within their respective jurisdictions. The powers do not belong to the same class. That which acts upon contracts and impairs their obligation only is prohibited.

MR. JUSTICE WOODBURY.

In the decisions of this Court on constitutional questions it has happened frequently that, though its members were united in the judgment, great differences existed among them in the reasons for it, or in the limitations on some of the principles involved. Hence it has been customary in such cases to express their views separately. I conform to that usage in this case the more readily as it is one of the first impression before this tribunal, very important in its consequences, as a great landmark for the states as well as the general government, and, from shades of difference and even conflicts in opinion, will be open to some misconstruction.

I take the liberty to say, then, as to the cardinal principle involved in this case that in my opinion, all the property in a state is derived from, or protected by, its government, and hence is held subject to its wants in taxation, and to certain important public uses, both in war and peace. Vattel, B. 1, ch. 20, § 244; 2 Kent Comm. 270; 37 Am.Jurist 121; 1 Bl.Comm. 139; 3 Wils. 303; 3 Story on Const. 661;
3 U. S. 3
Dall. 95. Some ground this public right on sovereignty. 2 Kent Comm. 339; Grotius, B. 1, ch. 1, § 6. Some on necessity. 2 Johns.Ch. 162; 11 Wend. 51; 14 Wend. 51; 1 Rice 383;
Vanhorne's Lessee v. Dorrance,
2 Dall. 310;
Dyer v. Tuscaloosa Bridge,
2 Porter 303;
Harding v. Goodlett,
3 Yerger 53. Some on implied compact.
Raleigh & Gaston Railroad Co. v. Davis,
2 Dev. & Bat. 456; 2 Bay 36, in S.Car.; 3 Yerger 53. Where a charter is granted after laws exist to condemn property when needed for public purposes, others might well rest such a right on the hypothesis that such laws are virtually a part and condition of the grant itself, as much as

But however derived, this eminent domain exists in all governments, and distinguished from the public domain, as that consists of public lands, buildings &c.;, owned in trust exclusively and entirely by the government, 3 Kent Comm. 339;
Memphis v. Overton,
3 Yerger 389, while this consists only in the right to use the property of others, when needed, for certain public purposes. Without now going further into the reasons or extent of it, and under whatever name it is most appropriately described, I concur in the views of the Court that it still remains in each state of the Union in a case like the present, having never been granted to the general government so far as respects the public highways of a state, and that it extends to the taking for public use for a road any property in the state, suitable and necessary for it.
Tuckahoe Canal Case,
11 Leigh 75;
36 U. S. 11
Pet. 560; 20 Johns. 724; 3 Paige Ch. 45; 7 Pick. 459. But whether it could be taken without compensation where no provision exists like that in the Fifth Amendment of the Constitution of the United States, or that in the Vermont Constitution, somewhat similar, is a more difficult question, and on which some have doubted. 4 D. & E. 794; 1 Rice 383; 3 Leigh 337. I do not mean to express any opinion on this, as it is not called for by the facts of this case. But compensation from the public in such cases prevails generally in modern times, and certainly seems to equalize better the burden.
2 U. S. 2
Dall. 310;
Pisc. Bridge v. Old Bridge,
7 N.H. 63; 4 D. & E. 794; 1 Nott & McCord 387;
Stokes v. Sup. Ass. Co.,
3 Leigh 337; 11 Leigh 76;
Hartford Bridge,
17 Conn. 91; Vattel, B. 1, ch. 20, § 244; 3 Paige Ch. 45; 2 Dev. & Bat. 451; 2 Kent Comm. 339, note;
Lex. & Oh. Railroad Vase,
8 Dana 289.

Nor shall I stop to discuss whether it is on this principle of the eminent domain alone that private property has always been taken for highways in England on making compensation, so as to be a precedent for us. This was done there formerly, not as here, but by a writ
ad quod damnum,
and it was for ages issued before the grant of any new franchise by the King, whether a road, ferry, or market, and the inquiry related to the damage by it, whether to the public or individuals. Fitz.N.B. 221; 3 Bac.Abr., Highways, A.

And thus, notwithstanding the theoretical omnipotence of Parliament, private rights and contracts have been in these particulars, about compensation and necessity for public use, as much respected in England as here.

So as to railroad companies as well as turnpikes under public trustees, and as to common highways; the former are often authorized there to erect bridges, and carry their roads over turnpikes and other highways; but it is on certain conditions, keeping them passable in that place or near, and on making compensation.
Kemp v. L. & B. Railway Co.,
1 Railway Cases 505, and
Attorney General v. L. & S. Railroad,
1
id.
302, 224; 2
id.
711; 1 Gale & D. 324; 2
id.
1; 4 Jurist 966; 5
id.
652; 9 Dowling, P.C. 563; 7 Adol. & Ellis 124; 3 Maule & Selw. 526; 11 Leigh 42.

But I freely confess that no case has been found there by me exactly in point for this, such as the taking of the road or bridge of one corporation for another, or of taking for the public a franchise of individuals connected with them. Though at the same time I have discovered no prohibition of it, either on principle or precedent, if making compensation and following the mode prescribed by statute.

The peculiarity in the present case consists in the facts that a part of the property taken belonged to a corporation of the state, and not to an individual, and a part was the franchise itself of the act of incorporation.

I concur in the views that a corporation created to build a bridge like that of the plaintiffs in error is itself, in one sense, a franchise. 2 Bl.Comm. 37;
Bank of Augusta v. Earle,
13 Pet. 596;
17 U. S. 4
Wheat. 657; 7 Pick. 394; 11 Pet. 474, 454, 472, 490,
36 U. S. 641
,
36 U. S. 645
; 11 Leigh 76; 3 Kent Comm. 459. And in another sense that it possesses franchises incident to its existence and objects, such as powers to erect the bridge and to take tolls.
See
same cases.

I concur in the views also that such a franchise as the incorporation is a species of property. 7 N.H. 66;
Tuckahoe Canal Co. v. Tuckahoe & Camb. Railroad Co.,
11 Leigh 76. It is a legal estate vested in the corporation.
17 U. S. 4
Wheat. 700;
36 U. S. 11
Pet. 560. But it is often property distinct and independent of the other property in land, timber, goods, or choses in action, which a corporation, like a body not artificial, may own. 3 Bland 449; 11 Leigh 76.

Because there was no covenant or condition in the charter or contract that the property owned by it should not be liable to be taken, like all other property in the state, for public uses in highways. 7 N.H. 69;
17 U. S. 4
Wheat. 196;
Jackson v. Lamphire,
3 Pet. 289.

Because without such covenant, all their property, as property, must be liable to proper public uses, either by necessity, or the sovereignty of the state over it, or by implied agreement.

And because, on a like principle, taxes may be imposed on such property, as well as all other property, though coming by grant from the state, and may be done without violating the obligation of the contract, when there is no bonus paid or stipulation made in the charter not to tax it. This is well settled. 5 Barn. & Ald. 157; 2 Railway Cases 17
arg.
23;
11 U. S. 7
Cranch 164;
New Jersey v. Wilson,
4 Pet. 511;
Providence Bank v. Billings,
11 Pet. 567, Shaw, C.J., in
Charles River Bridge v. Warren Bridge;
44 U. S.
Appeal Tax Court,
3 How. 146; 12 Mass. 252;
17 U. S. 4
Wheat. 699; 4 Gill & Johns. 132, 153;
Williams v. Pritchard,
4 D. & E. 2. The grantees are presumed to know all these legal incidents or liabilities, and they being implied in the grant or contract, their happening is no violation of it.
33 U. S. 8
Pet. 281,
33 U. S. 287
;
36 U. S. 11
Pet. 641,
36 U. S. 644
; 3 Paige 72.

Vattel says "The property of certain things is given up to the individuals only with this reserve." B. 1, ch. 20, § 244.

In England anciently, when titles of land became granted with immunities from numerous ancient services, it was still considered that such lands were subject by implication, under a certain
trinoda necessitas,
to the expenses of repair of bridges as well as forts and of repelling invasion. Tomlins, Dict., Trinoda Necessitas; 3 Bac.Abr., Highways, A.

Even the right to a private way is sometimes implied in a grant, from necessity. Cro.Jac. 189; 8 D. & E. 50; 4 Maule & Selw. 387; 1 Saund. 322, note.

It must be confessed that some surprise has been felt to find this doctrine so widely sustained and in so many of the states, and yet no exact precedent existing in England.

But in relation to it here, I am constrained in some respects to differ from others, and, as at present advised, agree to the last proposition, concerning the taking of the franchise itself of a corporation only when the further exercise of the franchise as a corporation is inconsistent or incompatible with the highway to be laid out.

It is only under this limitation as to the franchise itself that there seems to be any of the necessity to take it which, it will be seen in the positions heretofore and hereafter explained, should exist. Nor do I agree to it with that limitation, without another -- that it must be in cases where a clear intent is manifested in the laws that one corporation and its uses shall

yield to another, or another public use, under the supposed superiority of the latter and the necessity of the case. 4 Gill & Johns. 108, 150;
Barbour v. Andover,
8 N.H. 398.

Within these limitations, however, the acts of incorporation and all corporate franchises appear to me to possess no more immunity from reasonable public demands for roads and taxes than the soil and freehold of individuals.

The land may come by grant or patent from the state as well as the corporation, and both the grant and corporation may be contracts. But they are contracts giving rights of property, held, and of course understood to be held, subject to those necessary burdens and services and easements to which all other property is liable. And it is neither inconsistent with the grant of them nor a violation of the contract contained in them to impose those burdens and easements unless an express agreement has been made to the contrary by the state in the act of incorporation or grant, as is sometimes done in respect to taxation. But where the corporation, as a franchise, or its powers as franchises, can still be exercised usefully or profitably, and the highway be laid out as authorized, I see no reasons why these franchises should then be condemned or taken. The property owned by a banking or manufacturing corporation may, for instance, be condemned for highways, necessarily, where situated on a great line of travel; but why should their franchises be, if their continued existence and use may be feasible and profitable, and one not inconsistent with the taking and employment of their other property for a public highway?

In this instance, however, as a fact, the franchise was established and seems to be useful only in one locality. The continuance of it elsewhere than at this spot would be of no benefit to individual members or the public. If the bridge itself and land of the corporation at that place were taken, it was better for the latter that the franchise should be taken with them, if enhancing the damages any, because, unlike a bank or manufacturing company, the corporation could not do business to advantage elsewhere, even within the limited four miles, as there was no road elsewhere within their grant. The law of Vermont, too, was clear that the toll bridge might be made to give way for a free highway. It is therefore only under the particular circumstances and nature of this case that, in my apprehension, the taking of the franchise itself was not a violation of the contract. For under different circumstances, if a franchise be taken and condemned for a highway, when not connected locally with other property wanted, when it can be exercised on ordinary principles elsewhere, when not

in some respects incident to, or tied up with, the particular property and place needed, I am not now prepared to uphold it. I am even disposed to go further and say that if any property of any kind is not so situated as to be either in the direct path for a public highway or be really needed to build it, the inclination of my mind is that it cannot be taken against the consent of the owner. Because, though the right of eminent domain exists in some cases, it does not exist in all, nor as to all property, but probably as to such property only as, from its locality and fitness, is necessary to the public use.
Semb.,
4 Mylne & Craig 116;
Webb v. Manch. & Leeds Railway Co.,
1 Railway Cases 576.

It may be such not only for the bed of the road, but perhaps for materials in gravel, stone, and timber, to build it with. Yet even then it must be necessary and appropriate as incidents. 2 Dev. & Bat. 462; 13 East 200.

And also, for aught I now see, circumstances must, from its locality and the public wants, raise an urgent necessity for it. "The public necessities" are spoken of usually as the fit occasion to exercise the power, if it be not derived from them in a great degree, and the reason of the case is confined to them.
See
cases before.

The ancient
trinoda necessitas
extended to nothing beyond such necessity.

Indeed, without further examination, I fear that even these limitations may not be found sufficient in some kinds of public highways -- such as railroads, for instance. And I must hear more in support of this last position before acquiescing in their right to take,
in invitum,
all the materials necessary to build such roads -- as the timbers on which their rails are laid, or the iron for the rails themselves.

Nor do I agree that in all cases of a public use, property which is suitable or appropriate can be condemned. The public use here is for a road, and the reasoning and cases are confined chiefly to bridges and roads, and the incident to war. But the doctrine that this right of eminent domain exists for every kind of public use, or for such a use when merely convenient, though not necessary, does not seem to me by any means clearly maintainable. It is too broad, too open to abuse. Where the public use is one general and pressing, like that often in war for sites of batteries, or for provisions, little doubt would exist as to the right.
Salus populi suprema est lex.
So as to a road, if really demanded in particular forms and places to accommodate a growing and changing community, and to keep up with the wants and improvements of the age -- such as its pressing demands for easier social intercourse,

quicker political communication, or better internal trade -- and advancing with the public necessities from blazed trees to bridle paths, and thence to wheel roads, turnpikes, and railroads.

But when we go to other public uses not so urgent, not connected with precise localities, not difficult to be provided for without this power of eminent domain, and in places where it would be only convenient, but not necessary, I entertain strong doubts of its applicability. Who ever heard of laws to condemn private property for public use for a marine hospital or state prison?

So a custom house is a public use for the general government, and a courthouse or jail for a state. But it would be difficult to find precedent or argument to justify taking private property without consent to erect them on, though appropriate for the purpose. No necessity seems to exist which is sufficient to justify so strong a measure. A particular locality as to a few rods in respect to their site is usually of no consequence, while as to a lighthouse or fort or wharf or highway between certain termini it may be very important and imperative. I am aware of no precedents, also, for such seizures of private property abroad, for objects like the former, though some such doctrines appear to have been advanced in this country. 3 Paige 45. Again, many things belonging to bridges, turnpikes, and railroads, where public corporations for some purposes, are not, like the land on which they rest, local and peculiar and public in the necessity to obtain them by the power of the eminent domain. Such seem to be cars, engines &c.;, if not the timber for rails, and the rails themselves.
Gordon v. C. & J. Railway Co.,
2 Railway Cases 809.

Such things do not seem to come within the public exigency connected with the roads which justifies the application of the principle of the eminent domain. Nor does even the path for the road, the easement itself, if the use of it be not public, but merely for particular individuals, and merely in some degree beneficial to the public. On the contrary, the user must be for the people at large -- for travelers -- for all -- must also be compulsory by them, and not optional with the owners -- must be a right by the people, not a favor -- must be under public regulations as to tolls, or owned, or subject to be owned, by the state, in order to make the corporation and object public, for a purpose like this. 3 Kent Comm. 270;
Railroad Co. v. Chappell,
1 Rice 383;
Memphis v. Overton,
3 Yerger 53;
King v. Russell,
6 Barn. & Cres. 566;
King v. Ward,
4 Adol. & Ellis 384.

It is not enough that there is an act of incorporation for a bridge or turnpike or railroad to make them public so as to be able to take private property constitutionally without the owner's consent, but their uses and object or interests must be what has just been indicated -- must in their essence, and character, and liabilities, be public within the meaning of the term "public use." There may be a private bridge, as well as private road, or private railroad, and this with or without an act of incorporation.

In the present instance, however, the use was to be for the whole community, and not a corporation of any kind. The property was taken to make a free road for the people of the state to use, and was thus eminently for a public use, and where there had before been tolls imposed for private profit and by a private corporation so far as regards the interest in its tolls and property.

And the only ground on which that corporation, private in interest, was entitled in any view originally to condemn land or collect tolls was that the use of its bridge was public -- was open to all and at rates of fare fixed by the legislature and not by itself, and subject to the revision and reduction of the public authorities.

It may be and truly is that individuals and the public are often extensively benefited by private roads, as they are by mills, and manufactories, and private bridges. But such a benefit is not technically nor substantially a public use unless the public has rights. 1 Rice 388. And in point of law it seems very questionable as to the power to call such a corporation a public one, and arm it with authority to seize on private property without the consent of its owners.

I exclude, therefore, all conclusions as to my opinions here being otherwise than in conformity to these suggestions, though when, as in the present case, a free public use in a highway and bridge is substituted for a toll bridge, and on a long or great and increasing line of public travel, and thus vests both a new benefit and use, and a more enlarged one, in the public, and not in any few stockholders, I have no doubt that these entitle that public for such a use to condemn private property, whether owned by an individual or a corporation.
Boston W. P. Co. v. B. & W. Railroad Corp.,
23 Pick. 360. And it is manifest that unless such a course can be pursued, the means of social and commercial intercourse might be petrified and remain for ages, like the fossil remains in sandstone, unaltered, and the government, the organ of a progressive community, be paralyzed in every important public improvement. 2 Dev. & Bat. 456; 1 Rice 395; 8 Dana 309.

I exclude also any inference that in assenting to the doctrine that an act of incorporation for a toll bridge is a contract giving private interests and rights as well as public ones, and thereby not allowing a state to take the private ones or alter them unless for some legitimate public use or by consent, as laid down in
17 U. S. 4
Wheat. 628, I can or do assent to the doctrine of some of the judges there in respect to public offices being such contracts as not to be changed or abolished by a state on public considerations without incurring a violation of the contract.

I should be very reluctant to hold, till further advised, that public offices are not, like public towns, counties &c.;, mere political establishments, to be abolished or changed for political considerations connected with the public welfare.
13 U. S. 9
Cranch 43. The salaries, duration, and existence of the offices themselves seem to be exclusively public matters, open to any modification which the representatives of the public may decide to be necessary whenever no express restriction on the subject has been imposed in the Constitution or laws.
Quaere.
Hoke v. Henderson,
4 Dev. 1.

Finally, I do not agree that even this franchise, as property, can be taken from this corporation without violating the contract with it unless the measure was honest,
bona fide,
and really required for what it professed to be, beside being, as before remarked, proper, on account of the locality and nature of this property, to be condemned for this purpose.

And though I agree that, for most cases and purposes, the public authorities in a state are the suitable judges as to this point, and that the judiciary only decide if their laws are constitutional, 2 Kent Comm. 340; 1 Rice 383; that the legislature generally acts for the public in this, 2 Porter 303; 3 Bl.Comm. 139, note; 4 D. & E. 794, 797; that road agents are their agents, under this limitation, 1 Rice, 383; yet I am not prepared to agree that if, on the face of the whole proceedings -- the law, the report of commissioners, and the doings of the courts -- it is manifest that the object was not legitimate, or that illegal intentions were covered up in forms, or the whole proceedings a mere "pretext," our duty would require us to uphold them.
Ibid.;
Rice 391. In England, though

this power exists, yet if used maliciously or wantonly, it is held to be void.
Boyfield v. Porter,
13 East 200.

In this case, however, while the fairness of it is impeached by the plaintiffs in error, yet on the record the object avowed is legal. It was to make travel free where it was before taxed, and the bridge, though remote from the changes desired in the old road, was still situated on the great line of travel over it, and not merely by color and finesse connected, and, from increases in population and business, seemed proper to be made free at the expense of the town or county.

Nor on the face of the record do the proceedings seem void, because the assessment may have been without a jury, when it was made by the legal officers, appointed for that purpose.
28 U. S. 3
Pet. 280; 2 Dev. & Bat. 451, 460;
Beekman v. Sar. Railroad,
3 Paige Ch. 45. Nor void as made by the commissioners without notice when the return states notice and when there was a full hearing enjoyed by all before the court on the report.

Nor void because the compensation was too small to the corporation -- as it was assessed in conformity to law -- or too burdensome to the town alone to discharge, though the last might well have been flung on a larger number, like a county. 10 N.H. 370; Tomlins, Dict., Ways, 2; 1 Rice 392. Nor because the commissioners take a fee instead of an easement, when the legislature provide for a fee as more expedient. 2 Dev. & Bat. 451, 467. Nor because some of the property condemned was personal, when it was mixed with the real, and when real or personal, if needed and appropriate, may at times be liable. 1 Rice 383.

With these explanations, I would express my concurrence in the judgment of the court.

MR. JUSTICE WAYNE delivered a dissenting opinion.

Order

The West River Bridge Company, Plaintiffs in error v. Joseph Dix, and the Towns of Brattleboro' and Dummerston in the County of Windham.

This cause same on to be heard on the transcript of the record from the Supreme Court of Judicature of the State of Vermont, and was argued by counsel. On consideration whereof it is now here ordered and adjudged by this Court that the judgment of the said supreme court in this cause be and the same is hereby affirmed with costs.

The West River Bridge Company, Plaintiffs in error v. Towns of Brattleboro' and Dummerston, in the County of Windham, and Joseph Dix, Asa Boyden, and Phineas Underwood.

This cause same on to be heard on the transcript of the record from the Supreme Court of Judicature of the State of Vermont, and the Chancellor of the First Judicial Circuit of the said State of Vermont, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this Court, that the judgment of the said Supreme Court of Judicature and Chancellor of the First Judicial Circuit of the State of Vermont in this cause be and the same is hereby affirmed with costs.